Employers Liability
Employers can incur a liability where their employees are resolved in two ways. Common law (Negligence) Employers have a common law duty to ensure that employees are competent - Qualified, experienced, in adequate number, adequate trained, and supervised. The employer also has a duty to provide proper equipment (machinery and safety clothing) and a safe system of working. In Hudson v Ridge Manufacturing an employee that was continuously persecuted for his disability by some of his colleagues was found to have a claim against his employer who failed to take enough action to reprimand the responsible employee. However the employer would seemingly have to be aware of the action, as in Smith v Crossley Bros where the employees engaging in initiation rites without the employers knowledge did not arise to an employer's liability case being proven. The responsibility to provide adequate training is explored in cases such as Cameron v Cavernor Govan were ad hoc on the job training. However injures in rough training in Chief Countsable for Yorkshire and hunter and Brisco v secretary of state for Scotland were found not to be negligent as the type of roles. The duty to provide adequate supervision is explored in cases like Gibson v BR Maintenance, where an injury during an impromptu football game was found to be a breach of this duty to supervise as there was no formal (trained) supervisor on site. However a supervisor pulling hair in Wilson v Excel UK was found not to be part of the job and so a liability did not arise. In Paris v Stepney Borough Council, non provision of safety goggles for a one eyed man who subsequently had a metal chip enter his eye resulted in a finding of liability against the council. A similar cause of action was used in Smith and Others v MOD regarding the lack of adequate equipment against IEDs on deployment to Iraq. In Given v James Watt College a faulty drinks machine that emitted steam which caused the pursuer to jump back and fall succeeded in their claim against their employer, particularly as the faults in the machine were well known. Whilst stress itself would typically fall under "Nervous Shock" (and be hard to prove as its not a sudden event - see Hatton v Sutherland, it has been backdoor entered into safe working practices. Vicarous Liability Employers can be vicariously with their employees for actions taken by employees during the course of their employment. As this liability is joint, and several, this does not remove the employees own liability, however as the employer is likely to have deeper pockets they are more likely to be the target for this action. It is possible for the employer to then sue the employee for their part of the damages, even if not named in the original case Lister v Ongford Ice In addition to the normal delictual rules, two additional requirements must be shown: *That the person responsible for the action was in an employment relationship with the defender *That the loss was incurred during the scope of the actors (or omittors) employment. Proving an Employment Relationship Whist this might seem obvious, it can be anything but. A Taxi driver, as someone who is publicly for hire for one off contracts is not an employee, a permanent chauffeur is probably an employee. Courts will generally consider: *What the intentions of the parties were *Who owns the equipment being used *How the person is paid *The nature of the relationship (i.e. Duration and Termination). Contractors Who is an Employee and who is a contractor was a key question in many cases Ready Mix Concrete v Minister of Pensions, a person who was subject to company rules such as uniform and safety rules, and had the company service his equipment and pay for National insurance, but called an "Independent Contractor" on his contract was determined not to be an Employee for Employer's Liability purposes. However in Holli v Luminar Leisure, a bouncer supplied from another contractor, but working under Luminar's direction was found to be an employee (however as the contractor was under administration there is some question as to whether this case was decided on law, or on the desire to ensure the persuer was compensated). Thoms v Royal Mail also looked at the Agency Contractor situation and found no way of construing an employment contract. Scope of Employment For a liability to be incurred by the employer, the act or omission must be *Part of Authorised work, done in an Authorised way *Part of Authorised work, done in an unauthorised way e.g.: In Century Insurance Co Ltd v N.Ireland Rd Transport Board, a petrol lorry driver who loit a cigarette too close to the lorry whilst unloading it was found to be doing "Authorised Work" (transfer of fuel) but in an "Unauthorised way". The employer was therefore responsible for the resulting explosion. In Bell v Blackwood Morton & Sons Ltd, an employee who was knocked over by another rushing past whilst both were leaving the premises were found to be in the course of their employment. It cannot be incurred from: *Part of Unauthorised work *The employee using the Employer's equipment. Unauthorised work, or authorised work in an unauthorised way The Key case splitting these two issues is Williams v Hemphill, where a lorry driver was tasked with transporting children from a boys brigade chapter. The driver was convinced by the children to divert to another town to visit a party. The driver was found at fault during an accent that harmed several of the passengers. Whilst the divert could be seen as "Unauthorised work", the House of Lords said the Employer was Liable as the dominant purpose was to transport the kids, and the divert did not become an independent purpose - the divert would have had to have been a "Frolic of his own" to be potentially unauthorised work. Category:Unintentional Delicts Category:Intentional Delicts